Johnson v. Winchester, et al

Johnson, v. Winchester, et al.,

IN THE UTAH COURT OF APPEALS

----ooOoo----

Donald R. Johnson,

Petitioner and Appellant,

v.

Colin Winchester, et al.,

Respondents and Appellees.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 971736-CA

F I L E D

(November 5, 1998)

-----

Sixth District, Kanab Department

The Honorable K.L. McIff

Attorneys:  Donald R. Johnson, Draper, Appellant Pro Se

Colin R. Winchester, Kanab, for Appellees

-----

Before Judges Billings, Greenwood, and Jackson.

PER CURIAM:

Appellant Donald R. Johnson appeals from the denial of a petition for extraordinary relief based upon conditions of his confinement.

Johnson alleged that as a pretrial detainee in the Kane County Jail (1) he was subjected to "psychological surgery" or "chemical phlebotomy" by jail officials who put drugs in his food; (2) he was assaulted by a jail employee impersonating an inmate; and (3) he was denied access to his legal materials. The district court called for a response to only the third issue.

While the petition was pending, Johnson was transferred to the Iron County Correctional Facility. At an August, 1995 hearing, he conceded he had unlimited access to his legal materials at that facility, and obtained leave to file an amended petition. The amended petition repeated the factual allegations, but characterized them as a violation of the Eighth Amendment's prohibition of cruel and unusual punishment and of his due process rights under the Fifth and Fourteenth Amendments. The district court dismissed the petition as moot, based upon Johnson's transfer. The court ruled that the other relief sought in the amended petition was not an appropriate subject of a petition for extraordinary relief.

Johnson's transfer to the Iron County Correctional Facility rendered his claims regarding conditions of his pretrial detention at the Kane County Jail technically moot. In Wickham v. Fisher, 629 P.2d 896 (Utah 1981), the Utah Supreme Court considered whether the claims of a group of inmates regarding allegedly unconstitutional conditions of pretrial confinement were rendered moot by an appellant's transfer from pretrial detention. In Wickham, the supreme court determined that appeal should be allowed to continue under an exception to the mootness doctrine allowing an issue that is "technically moot as to a particular litigant at the time of appeal" to be litigated if it "is of wide concern, affects the public interest, is likely to recur in a similar manner, and, because of the brief time any one person is affected, would otherwise likely escape judicial review." Id. at 899. The supreme court concluded that because the appeal involved issues applicable to present and future detainees, it reflected "a continuing and recurring controversy sufficient to invoke the jurisdiction of this court." Id. at 900.

We conclude the present appeal does not present a continuing and recurring controversy sufficient to invoke our jurisdiction. First, the claims raised by Johnson were personal to him; thus, unlike the claims in Wickham, these issues were unlikely to recur in a similar manner to other pretrial detainees at the Kane County Jail. Second, a grievance filed by Johnson resulted in establishment of a policy for inmate access to legal materials that is not challenged in this appeal. Third, to the extent the claims request monetary damages from the respondents, the claims are beyond the scope of a petition for extraordinary relief challenging the terms of confinement. We find no basis to exercise the exception to the mootness doctrine described in Wickham.

The trial court did not err in denying the petition as moot. Accordingly, we affirm the dismissal.

______________________________

Judith M. Billings, Judge

______________________________

Pamela T. Greenwood, Judge

______________________________

Norman H. Jackson, Judge